When does a tragedy evolve from being a terrible accident to something criminal? That is the central question being asked to determine whether the now defunct Mechinat Yeud, and some of its employees, were responsible for negligently causing the death of American student Ariel Newman, 18, during a hike in the Judean Desert on September 10, 2014.
Yeud, based in Kibbutz Migdal Oz in Gush Etzion, was a program for Modern Orthodox Americans to spend a gap year between high school and college studying traditional Jewish texts in a yeshiva, but unlike many other such programs, it had a significant hiking component.
However, only eight days into his gap year in Israel, Ariel collapsed and died on the second day of a long trek in the Judean Desert in conditions of extreme heat.
A medical report with the cause of death given to Ariel’s parents, Mark and Ellen Newman of Great Neck, New York, said he died from exertional heat stroke, along with dehydration.
EHS occurs when someone exerts himself in extreme heat – the temperature on the day of the hike was 35 degrees Celsius (95 degrees Fahrenheit) – causing the body’s temperature to rise significantly (Ariel’s was at a staggering 43 C (109 F) when he died) and potentially leading to widespread organ failure and death.
The Newmans tried to push an investigation forward to see whether Yeud’s hike-tour guide who was with Ariel, Josh Ettinger, and Rabbi Yaacov Shapira, the head of the yeshiva who approved the hike, which the Newmans claim itself was inherently dangerous, had committed negligent homicide.
Still, five months later, in February 2015, they felt they were getting nowhere.
After losing patience with the red tape, they hired Jerusalem lawyer A. Amos Fried, who practices both civil and criminal law in Israel and New York, who began to engage more aggressively with the police.
Fried told The Jerusalem Post
a negligent homicide case against Shapira and Ettinger is a slam dunk.
“The route that Ettinger decided on couldn’t have been in a worse place for purposes of evacuation,” Fried said.
Furthermore, Fried said Ettinger and Shapira should not have approved an advanced desert hike on such a dangerously hot day with beginner-hiking tourists who had not yet acclimated to the hot Israeli climate.
He also accused Shapira of being negligent in hiring Ettinger to ensure the hikers’ safety when, he said, Ettinger lacked proper certification.
Perhaps most damaging to Ettinger, added Fried, was that Ariel had approached the guide and told him he could not go on and had even fallen asleep from the heat. Still, Ettinger forced him to keep going.
Fried, who corresponded with police and pressed them to take action, described the police as having a lazy attitude toward the case.
Finally, on May 13, 2015, the Arad police called the other hike participants, including Shapira and Ettinger, in for questioning.
Despite what Fried called Yeud’s attempt at “brainwashing” the students, documents obtained by the Post confirm that other students besides Ariel had significant dehydration difficulties on the hike with some needing medical treatment.
Following the questioning, the police transferred the file to the Southern District Attorney’s Office in June 2015 where it was punted around without any progress through January 2016.
A combination of complaints to the Justice Ministry oversight czar’s office and a meeting with Justice Minister Ayelet Shaked on March 28, 2016, got the Southern DA’s office to finally start looking at the file more seriously, said Fried.
On November 15, 2016, the DA’s office closed the case for insufficient evidence, but did not explain why.
A month later, on December 15, Fried appealed to State Attorney Shai Nitzan, who responded last week that he would decide the appeal by mid-August.
Why would the Newmans go after Shapira and Ettinger in a criminal negligent homicide claim instead of a civil wrongful- death damages claim, which requires a much lower threshold of proof? One reason might simply be strategic.
If the Newmans get the police and the prosecution to indict and convict Shapira and Ettinger, they can still file a civil claim later, and 90% of their case will already be proven based on the criminal case with the only issue left being proving damages.
But there is more to it than that. Mark and Ellen Newman told the Post they have been devastated not just by their only child’s death, but by the haphazard fashion with which they feel the system has handled his case.
Ellen said: “I wouldn’t say that it is a cover-up, so much as a cowardliness. There is so much overwhelming evidence...of negligent homicide. The fact that they would say ‘There is no evidence’... it’s just not true... a total cowardice.
“Do they not want to go after tour leaders, so as not to hurt the tourist industry – exposing the dirty secret that people die on hikes? No one reports it. There are no statistics.
They don’t want to shed light on it, and I don’t think we are the only people this has happened to. Ariel was not isolated,” continued Ellen.
“If you don’t have money – we used retirement money to fly back and forth [to Israel for meetings] – forget it, there is no justice... There is something not kosher about that,” she said.
Mark chimed in: “What is the real purpose of our pushing for this? The real purpose is to make sure, unequivocally, that everyone in the country understands that you can’t do whatever you feel like...because there won’t be any consequences.”
Regarding going for criminal charges as opposed to civil damages, Mark said: “Money is effective in affecting the large companies, but criminal law, if someone is convicted, it will impact the tour guides themselves, the individuals...It’s what really strikes fear in people... and sheer justice demands this, because there is a law called negligent homicide and this fits it to a T.”
Mark added: “Their starting point was ‘Screw the rules, screw safety, we know what we are doing, we’ve done it for years’... There is a world of difference between pushing someone and putting people on a death march.”The Post
attempted several channels to contact Shapira and Ettinger to get a response, including the law office of Eliad Shraga, the lawyers for the Yeud Yeshiva; Rabbi Naftali Rothstein, who accompanied the hike in a vehicle at certain stopping points to drop off lunch and water; as well as former Yeud executive director Shmil Atlas – but received no response or additional contact information.
The police dispute the claims against it, saying it promptly opened an investigation into the tragic death and that the probe was impacted by “the refusal of the family to have an autopsy conducted.”
“After eight months, upon receipt of the professional opinion of the state medical- legal center, the classification of the case was changed to a suspicion of negligent homicide, and accordingly, additional investigative activities were undertaken,” a police statement said.
The Justice Ministry responded that it was saddened by the “family’s feelings” but that the case was complex; required gathering of additional evidence; and ultimately was closed due to insufficient evidence. The ministry’s statement also noted that the Newmans’ appeal is still pending.
The Newmans responded to the police claim about the autopsy noting that on the spot, they did not realize that his death was due to EHS. Therefore, they did not feel they had any grounds for permitting an autopsy, prohibited by Jewish law if there is no extenuating circumstance.
In addition, the Newmans have a positive initiative to go along with the criminal case. After Ariel’s death, a doctor friend mentioned to them the idea of hospitals keeping track of patients using medical checklists to avoid mistakes. This inspired the Newmans to start a checklist for hikers in Israel – which became “Ariel’s Checklist.”
Ariel’s Checklist - at: www.arielschecklist.com
– is a 10-step, one page, easy-to-understand safety guideline to prevent heat-related injury in Ariel’s memory.
Meetings with the Jewish Agency’s Natan Sharansky, Shaked, Tourism Ministry officials and others eventually got MASA, an umbrella organization for a wide range of Israel-trips and hikes, to issue a revised hiking rules guide incorporating Ariel’s Checklist, though the Newman’s are still campaigning for the list to be mandatory and not just suggested.